HONOLULU (AP) — The Hawaii Supreme Court will be asked to decide whether a
recent U.S. Supreme Court ruling created vacancies on the Office of Hawaiian
Affair’s board of trustees, Gov. Ben Cayetano and board chairman Clayton Hee
The court will be asked if Cayetano has the authority to
appoint interim trustees until the November elections or whether the current
trustees can serve until those elections, they said.
The OHA board on
Thursday approved Hee’s recommendation that they join the Cayetano
administration in seeking guidance from the state’s highest court.
Supreme Court last week struck down the state’s Hawaiians-only restriction in
OHA elections as an unconstitutional racial discrimination. The challenge was
brought by Big Island rancher Harold “Freddy” Rice, who was denied an OHA
ballot in 1996 because he is not a Native Hawaiian.
reaction that he would name interim trustees set off a storm of protest by
OHA’s trustees and members of the Hawaiian community, including calls for
peaceful civil disobedience targeting airports and harbors.
When the U.S.
Supreme Court ruled, the state administration implemented a contingency plan it
had developed “to move as quickly as possible to assure that the OHA trust
assets and the services which were given to beneficiaries would continue in a
way that was effective and efficient,” Cayetano said.
But OHA trustee
Mililani Trask saw Cayetano’s action as a move to grab control of OHA’s $377
million trust. On Wednesday, Trask called upon Hawaiians to conduct strategic
peaceful protests to shut down airports and harbors.
Trask called the
decision to approach the Hawaii Supreme Court for a declaratory judgment “a
good first step” that lessens the need for immediate protests. But she said
civil disobedience may still be needed to push the state to resume giving OHA
its share of revenues from ceded lands.
Hee and the majority of the
trustees, who said Trask’s call for protests was inappropriate, hired a top
Honolulu law firm to challenge Cayetano’s action in court on the grounds that
the trustees should be allowed to serve out their terms.
Hee, however, is a
longtime friend of Cayetano. In a hour-long meeting Wednesday, they worked out
the compromise to seek guidance from Hawaii’s highest court.
that the best way to resolve our differences is to petition the Hawaii Supreme
Court for a declaratory opinion to clarify the legal status of the trustees and
the legal authority of the state,” Cayetano said.
With OHA willing to work
jointly to resolve the legal issues, “to proceed and (say) ‘Damn the torpedoes,
I’m going to do what I think is right,’ we’ll end up in court anyway,” he
Hee was grateful an agreement was reached.
“This really is, in my
view, a reasonable way to proceed,” Hee said.
Getting an expedient decision
by the state court “should, at least for the time being, put an end to some of
the more volatile statements made in the community made with respect to civil
disobedience,” Hee said.
“I never thought Mililani
Trask would carry out her threats in the first place. I know her. I like her. I
think she’s a dedicated advocate for her particular causes, but as this played
out I think it will come clear to her that that course of action is not the
appropriate one,” he said.
If the high court decides the governor needs to
make interim appointments, Cayetano said he may appoint some or all of the
Those appointments may hinge on concerns about OHA’s
“legally questionable” actions under former chairwoman Rowena Akana and the
failure of OHA’s leadership to respond to his administration’s questions about
those actions, Cayetano said.
Hee succeeded Akana as chairman on Jan.
Cayetano cited OHA’s move to set up its own retirement system and
approvals of legal settlements without consulting the attorney general, as
required by law.
“I think that if OHA has taken some actions which are
legally questionable, then it reflects on whether these people should be even
considered for reappointment or not,” he said.
The governor said a
lingering legal question from the Rice v. Cayetano case is whether candidates
for OHA’s board must be Native Hawaiians.
“There is a difference to the
right to vote, which is established in the United States Constitution, and the
right to run for public office, which has all kinds of restrictions put on it,”
The Legislature should address that question, Cayetano
Because the U.S. Supreme Court did not address the issue of race to
be an OHA candidate, Cayetano said he’ll probably follow existing state law and
appoint only Hawaiians as interim trustees.